TELECOM Digest OnLine - Sorted: Court Rules in Favor of Anonymous Blogger

Court Rules in Favor of Anonymous Blogger

Randall Chase (
Thu, 6 Oct 2005 13:59:57 -0500

By RANDALL CHASE, Associated Press Writer

In a decision hailed by free-speech advocates, the Delaware Supreme
Court on Wednesday reversed a lower court decision requiring an
Internet service provider to disclose the identity of an anonymous
blogger who targeted a local elected official.

In a 34-page opinion, the justices said a Superior Court judge should
have required Smyrna town councilman Patrick Cahill to make a stronger
case that he and his wife, Julia, had been defamed before ordering
Comcast Cable Communications to disclose the identities of four
anonymous posters to a blog site operated by Independent Newspapers
Inc., publisher of the Delaware State News.

In a series of obscenity-laced tirades, the bloggers, among other
things, pointed to Cahill's "obvious mental deterioration," and made
several sexual references about him and his wife, including using the
name "Gahill" to suggest that Cahill, who has publicly feuded with
Smyrna Mayor Mark Schaeffer, is homosexual.

In June, the lower court judge ruled that the Cahills had established
a "good faith basis" for contending that they were victims of
defamation and affirmed a previous order for Comcast to disclose the
bloggers' identities.

One of the bloggers, referred to in court papers only as John Doe
No. 1 and his blog name, "Proud Citizen," challenged the ruling,
arguing that the Cahills should have been required to establish a
prima facie case of defamation before seeking disclosure of the
defendants' identities.

The Supreme Court agreed, reversing and remanding the case to Superior
Court with an order to dismiss the Cahills' claims.

"Because the trial judge applied a standard insufficiently protective
of Doe's First Amendment right to speak anonymously, we reverse that
judgment," Chief Justice Myron Steele wrote.

Steele described the Internet as a "unique democratizing medium unlike
anything that has come before," and said anonymous speech in blogs and
chat rooms in some instances can become the modern equivalent of
political pamphleteering. Accordingly, a plaintiff claiming defamation
should be required to provide sufficient evidence to overcome a
defendant's motion for summary judgment before a court orders the
disclosure of a blogger's identity.

"We are concerned that setting the standard too low will chill
potential posters from exercising their First Amendment right to speak
anonymously," Steele wrote. "The possibility of losing anonymity in a
future lawsuit could intimidate anonymous posters into self-censoring
their comments or simply not commenting at all."

The standard adopted by the court, the first state Supreme Court in
the country to consider the issue, is based on a 2000 New Jersey court

Under the standard adopted by the Supreme Court, a plaintiff must
first try to notify the anonymous poster that he is the subject of
subpoena or request for a court to disclose his identity, allowing the
poster time to oppose the request. The plaintiff would then have to
provide prima facie evidence of defamation strong enough to overcome a
summary judgment motion.

"The decision of the Supreme Court helps provide protection for
anonymous bloggers and anonymous speakers in general from lawsuits
which have little or no merit and are filed solely to intimidate the
speaker or suppress the speech," said David Finger, a Wilmington
attorney representing John Doe No. 1.

"Delaware cases are generally respected in other states, and we'll
have to see if this trend continues with these types of lawsuits, but
I expect the decision of the Delaware Supreme Court to be
influential," Finger added.

Robert Katzenstein, a lawyer representing the Cahills, did not
immediately return a telephone message left at his home.

"This is the first state Supreme Court to squarely decide the
standards to govern John Doe subpoena cases," said Paul Alan Levy, an
attorney for Public Citizen, a national, nonprofit consumer advocacy
organization, who helped argue the case for John Doe No. 1. "The
court's determination to require sufficient evidence before a critic
is outed will go a long way toward reassuring citizens that they
remain free to anonymously criticize public officials."

Steele noted in his opinion that plaintiffs in such cases can use the
Internet to respond to character attacks and "generally set the record
straight," and that, as in Cahill's case, blogs and chatrooms tend to
be vehicles for people to express opinions, not facts.

"Given the context, no reasonable person could have interpreted these
statements as being anything other than opinion. ... The statements
are, therefore, incapable of a defamatory meaning," he wrote.

Copyright 2005 The Associated Press.

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